Op-Ed: “Georgia v. Russia: Human Rights on the thin red line between war and peace” by Elisa Uría
On the 21st of January, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered one of those judgments called upon to set a historic milestone in Georgia v. Russia (application no. 38263/08). Indeed, it is not every day the ECtHR rules on an inter-State case – as a matter of fact, it is only the fourth in over 60 years – whereby major issues concerning the limits of the jurisdiction of the ECtHR are at stake.
1. Background to the case
Before delving into the lights and shadows of the judgment, it is necessary to provide a little context. Let’s turn to the summer of 2008, when an armed conflict between Russia and Georgia took place in South Ossetia and Abkhazia from the 8th to the 12th of August. According to the EU Fact-Finding Mission on the Conflict, about 850 persons lost their lives and more than 100,000 civilians had to flee their homes.
A ceasefire agreement was concluded on 12 August 2008 between the Russian Federation and Georgia under the auspices of the European Union. Only the day before, Georgia had lodged an application against the Russian Federation before the ECtHR in Strasbourg under Article 33 of the Convention. In December 2011, the application was declared admissible.
2. The Judgment of the European Court of Human Rights
More than 12 years after the facts took place, here we have a judgment. In a nutshell, Russia was condemned for violating:
- Articles 2, 3 and 8 of the European Convention of Human Rights (‘Convention’) and Article 1 of Protocol No. 1 by the killing of civilians and the torching and looting of houses in Georgian villages in South Ossetia;
- Article 2 of the Convention in its procedural aspect, by the failure of Russia to carry out an adequate and effective investigation;
- Article 3 of the Convention due to the detention conditions of some 160 Georgian civilians and the humiliating acts to which they were exposed and the acts of torture on Georgian prisoners of war;
- Article 5 of the Convention because of the arbitrary detention of Georgian civilians;
- Article 2 of Protocol No. 4 due to the inability of Georgian nationals to return to their respective homes; and
- Article 38 of the Convention, as Russia fell short of its obligation to furnish all necessary assistance to the ECtHR in its task to establish the facts of the case.
Although this judicial outcome “puts right many human rights wrongs”, in the words of one of the dissenting judges, the Gordian knot of this case lies in the scope of jurisdiction. It is noteworthy to say that, far from being a minor procedural detail, it constitutes the Convention-entrance gate. This means nothing less than the admissibility of a case before the Court and the subsequent review of the violation (or not) of the obligations arising from this international instrument.
In this judgment, the ECtHR made a distinction between the five-day ‘active hostilities’ phase of the conflict (8 to 12 August 2008) and the occupation phase after the ceasefire. This dichotomy permeates the whole reasoning of the ECtHR, as it decided (by 11 votes to 6) that the first phase did not fall within the jurisdiction of the Russian Federation. The consequence of this split is decisive; Strasbourg judges will not decide on the human rights violations that may have occurred in those days. This is the key of the judgment and the reason why it will be remembered through the years.
What is the reasoning of the ECtHR to reach such a striking conclusion? First of all, it considered that, in the event of military operations carried out during an international armed conflict, there is no ‘effective control’ over an area. It followed by assessing whether there was ‘State agent authority and control’ over individuals (the direct victims of the alleged violations) and answered in the negative. It is particularly relevant to note paragraphs 140 and 141, where the judges seem to be very aware of their historic cop-out. In this vein, the judgment states: ‘the Court is sensitive to the fact that such an interpretation of the notion of “jurisdiction” in Article 1 of the Convention may seem unsatisfactory to the alleged victims of acts and omissions by a respondent State during the active phase of hostilities’. And in the following paragraph it seems to find a justification of its position by claiming ‘having regard in particular to the large number of alleged victims and contested incidents, the magnitude of the evidence produced, the difficulty in establishing the relevant circumstances and the fact that such situations are predominantly regulated by legal norms other than those of the Convention (specifically, international humanitarian law)’.
It is unconvincing that those elements can be alleged as serious reasons to justify the (non) existence of jurisdiction and consequently, not reviewing whether there have been human rights violations or not. One may not be the only one struck by that line of reasoning as Judges Yudkivska, Wojtyczeck and Chanturia say in their dissent opinion: ‘We are simply astonished by these arguments’.
It is important to zoom out and put this judgment into perspective with the Strasbourg jurisprudence on extraterritorial jurisdiction (see paragraphs 81 onwards to see an extensive compilation on this issue). In fact, it is difficult to explore it without referring to another landmark decision of the Court; Bankovic, cited 77 times throughout the text of this judgment. On that occasion, the ECtHR’s Grand Chamber declared the inadmissibility of the application against European NATO states for the bombardment of Belgrade during the Kosovo conflict. The reason was also the lack of control by those states of the Serbian capital city and the subsequent lack of jurisdiction. Almost 20 years after Bankovic, the echoes of the academic critique still resound loudly. Even one of the dissenting judges, Judge Pinto de Alburquerque, refers to the former as a “regrettable” decision and defines the present judgment as a “pernicious progeny” of Bankovic. It is also worth mentioning that the applicability of the Convention to armed conflicts is not contested. Conversely, it is well established jurisprudence of the ECtHR that the Convention is in principle applicable in armed conflicts together with International Humanitarian Law. Nonetheless, what this judgment is (or should be) about is the boundaries of that application.
It is essential not only to zoom out in time but also in space. Indeed, it is necessary to look at the jurisprudence of other international courts as regards the scope of jurisdiction. Whereas Strasbourg has developed its position in a case-by-case way, the United Nations Human Rights Committee, the Inter-American Court of Human Rights or the African Commission on Human and Peoples Rights have tackled the question of jurisdiction in Advisory Opinions and General Comments. Moreover, it is striking that the ECtHR does not cite important documents on this issue, such as the Human Rights Committee’s General Comment No. 36 on the right to life. While those international bodies have evolved concerning the scope of jurisdiction in armed conflict, this decision seems a step backwards against the international trend.
Thus, a significant consequence of this judgment is that the ECtHR is sending the message that the Convention is not applicable whenever an armed conflict ‘out of effective control’ is taking place. In this regard, it sets an important precedent for similar pending cases such as Ukraine v. Russia (re Crimea) (see an analysis on the admissibility of that case here) or Armenia v. Azerbaijan around the region of Nagorno Karabakh. In this connection, some academics have announced that we may be living a ‘golden age of inter-State applications’ in Strasbourg as in 2020 alone five applications were lodged (Latvia v. Denmark, Liechenstein v. the Czech Republic, Armenia v. Azerbaijan, Armenia v. Turkey, Azerbaijan v. Armenia).
All in all, we must not lose sight when analysing Strasbourg decisions that the raison d’être of the ECtHR is to review the respect of human rights by the Contracting Parties, be it in wartime or peacetime. If only that thin red line between both was clear, but it never is. Furthermore, the Convention was not conceived to be applied only in times of calm but also, and even more, in times of trouble. That is when victims of human rights violations need it the most.
Elisa Uría is a Professor at the Public International Law Department of UNED University in Spain. She holds a PhD in Law from the University Carlos III of Madrid and an LLM in European Law from the College of Europe.